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Practical manual for Income Tax 2022.

a) Freedom of depreciation on new elements of fixed tangible assets. Transitional regime for amounts pending application as of March 31, 2012

Regulations: Additional Provision Thirtieth Law IRPF and Transitional Provision Thirteenth LIS

Scope 

The transitional regime is applicable to taxpayers of IRPF who, as of March 31, 2012, had amounts pending application for the following investments that have enjoyed the freedom of amortization of the Eleventh Additional Provision of the consolidated text of the LIS : 

  • Investments made in 2009 and 2010 to which the freedom of amortization applies with maintenance of employment of the Eleventh Additional Provision of the consolidated text of the LIS, as amended by Royal Decree-Law 6/2010, of April 9, on measures to promote economic recovery and employment ( BOE of April 13). 

  • Investments made from January 1, 2011 to March 30, 2012 to which the freedom of amortization applies without maintenance of employment of the Eleventh Additional Provision of the consolidated text of the LIS , as amended by Royal Decree-Law 13/2010, of December 3, on actions in the fiscal, labor and liberalizing fields to promote investment and job creation ( BOE of December 3). This latter regime of free amortization was also applicable to investments made between December 3, 2010 and December 31, 2010 when the entity had not met the employment maintenance requirement.

Contents of the transitional regime 

Taxpayers who, as of March 31, 2012, have not fully amortized the investment made for this concept may continue to apply the amounts pending under the conditions and with the requirements established by the Eleventh Additional Provision of the consolidated text of the LIS , as amended by Royal Decree-Law 6/2010, of April 9, and by Royal Decree-Law 13/2010. 

Limit on the application of outstanding amounts

The amounts pending amortization may be applied up to the limit of the positive net income of the economic activity to which the assets have been allocated prior to the deduction of the pending amounts and, where applicable, to the 5% reduction for provisions and expenses that are difficult to justify provided for in the simplified direct estimation method. 

Important: This limit is also applicable to investments made up to 31 March 2012 that correspond to new elements ordered under contracts for the execution of works or investment projects whose execution period, in both cases, requires a period of more than two years between the date of the order or start of the investment and the date of its availability or operation, to which any of the regimes of freedom of amortization of the eleventh additional provision of the consolidated text of the LIS applies. 

Consequences of applying the freedom of amortization in the transfer of assets 

The transfer in 2022 of assets that would have enjoyed the freedom of amortization of the Eleventh Additional Provision of the consolidated text of the LIS, has two consequences:

  1. In calculating the capital gain or loss, the acquisition value will not be reduced by the amount of tax-deductible amortization that exceeds what would have been tax-deductible had the freedom of amortization not been applied.

    Regarding the calculation of the capital gain or loss of items affected by the activity, see Chapter 11.

  2. The excess between the amount of the tax-deductible amortizations and the amount of the amortizations that would have been tax-deductible had the former not been applied will be considered, for the transferor, as total income from the economic activity in the tax period in which the transfer is made.

    See in the section "Computable gross income" what is indicated on the transfer of assets that have enjoyed freedom of amortization in this Chapter 7 and the Thirtieth Additional Provision of the Personal Income Tax Law.